American Injustice: Part 7 of 10

Based on the book Unfair: The New Science of Criminal Injustice by Adam Benforado.
For more detailed information, read the book.

Understanding Criminal Behavior

Humans claim to punish offenders for a variety of reasons – to incapacitate or rehabilitate the offender and thus prevent future offenses, to deter others from similar offenses, or for retribution just because a wrong must be punished. Experiments that study punishment of wild animal offenders help clarify our motivations because punishment of a killer shark, for example, will not likely alter that shark’s behavior nor the behavior of other sharks. So rehabilitation and deterrence are eliminated as reasons for punishment. Incapacitating the killer shark is still a valid rationale. However, when people were asked how much the shark should suffer when killed, people wanted more suffering when the victim was a little girl than when the victim was an adult pedophile. This reaction indicates a motive of retribution. In fact, retribution seems to be the strongest emotional motivator for punishment of offenders. Other reasons are mere rationalizations.

Our criminal justice system has evolved from focusing solely on a “bad act” to requiring proof of mental capacity and intent. Inability to understand or control ones actions and accidents versus intentional harm are considered relevant to blame and punishment. We consider children and those with a mental illness or intellectual disability to have diminished criminal capacity. However, in spite of scientific evidence that the human brain is not fully developed until about age 25, we still sometimes prosecute children as adults.

Our courts, and public opinion, still consider comprehension of consequences and harm more important than the act itself. A child who throws a bottle off of a bridge into high-speed traffic is more severely punished at age 14 than at age 8 and more severely punished if the bottle happens to hit a car and kill someone than if by chance it does not hit a car or no person is injured. The possibility of rehabilitating or teaching the offender and the probability of ever repeating the offence carry little weight.

Although we profess a strong core belief in not punishing an innocent person, a majority of people find it acceptable to hurt a player of an opposing team for something one of that person’s teammates did. Our desire for retribution contributes to mob lynchings of people thought to be similar to a suspect, gang policies of “you take one of ours and we take one of yours,” and torturing enemy combatants when someone on our side has been hurt. Such fundamental attitudes influence our approach to criminal justice.

Another factor is that people punish more harshly when an offender does not show remorse. We are also more punitive when we are reminded of deadly threats or our own mortality before a trial, although the threats (terrorist attacks or plane crashes, for example) have nothing to do with the trial. Only people with very high self esteem are less susceptible to mortality cues, perhaps because they better manage their fear of death. Attorneys are very good at eliciting juror fear, especially in death penalty cases.

The “myth of evil” includes the idea that some people are born evil and that evil people enjoy harming others. The stronger a person believes in evil, the more likely she or he is to punish harshly and to support the death penalty. Unfortunately, a person can be influenced to see someone as evil by presumably insignificant things, such as their appearance (e.g., Goth clothing), taste in music (e.g., heavy metal), or favorite books (e.g., occult literature).

We are still strongly influenced by the ancient philosophy of an eye for an eye. The ultimate consequence of that thinking is the death penalty. Most Western countries and 21 of our American states have abolished the death penalty. It has become increasingly clear that it is not an effective deterrent because those committing the most egregious crimes are not calculating the penalty prior to their actions. It is significantly problematic because it is irreversible and yet too often mistakenly adjudicated. During a recent 12-year period, 15 inmates on death row in the US have been exonerated by DNA evidence, although DNA is available in only a fraction of capital cases. Also, it clearly has been imposed with racial, ethnic and social class bias.

We no longer have public executions or torture people on the rack or draw and quarter convicts, but our modern practices may not be as enlightened as we want to believe. Their defects are just less apparent to us. We have a strong commitment to fairness and justice, we just don’t understand our own shortcomings in obtaining those ideals.

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